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TMI Blog2016 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... commission agent was not based on a genuine transaction by the respondent as according to the appellant/Revenue, the commission agent was not capable of carrying out any work as such. The next contention is that on the commission paid no TDS was deducted. 3. Ms. Asha Desai, the learned Counsel appearing for the appellant has submitted that on perusal of the orders passed by the Assessing Officer it clearly shows that there is a specific finding therein to the effect that the transaction of payment of commission to the agent was not a genuine transaction and, as such, the question of deducting such amount from the income of the respondent was not justified. The learned Counsel has thereafter pointed out that the Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his question of fact cannot be reappreciated by this Court in an appeal under Section 260A of the Income tax Act. 5. With regard to the next contention, the learned Counsel appearing for the respondent has pointed out that admittedly M/s. De Long Minerals and Logistics is not taxed in India and, as such, according to him the question of deducting tax at source would not arise at all. The learned Counsel has relied upon the judgment of this Court reported in 2015 94 CCH 0148 MumHC in the case of Commissioner of Income Tax V/s. Gujarat Reclaim & Rubber Products Ltd. which has relied upon the judgment of the Apex Court reported in 125 ITR 525 in the case of CIT V/s. Toshoku Ltd. 6. We have considered the submissions of the learned Counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dkar which also, inter alia, disclose the receipt of the commission from different persons. Considering that the facts finding authorities have concurrently come to the conclusion based on material on record that the amount of commission was paid to Pradeep Shirodkar and as such the respondent is entitled to deductions under Section 37 of the Income Tax Act, we find no perversity in the said findings which would result in a substantial question of law which could be examined in the present appeal. The learned Tribunal has dealt with payment of commission at para 4.3.7 of the impugned order dated 05.07.2013 and has given cogent reason on the basis of the material on record to dismiss the contention of the appellant with that regard. 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011) 1 S.C.C. 673 in the case of Vijay Kumar Talwar Vs Commissioner of Income Tax, Delhi by observing at para 23 thus : "23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal v. Gopi, Narendra Gopal Vidyarthi v. Rajat Vidyarthi, Commr. of Customs v. Vijay Dasharath Patel, Metroark Ltd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.)" Taking note of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oku Ltd. 125 ITR 525 wherein on almost identical facts, the Apex Court held that the commission earned by the nonresident agent who carried on the business of selling Indian goods outside India, cannot be said have deemed to be income which has accrued and/or arisen in India. This view of the CIT(A) for Assessment Year 2008-09 was found acceptable by the Tribunal in its impugned order and applied the same even for Assessment Year 2007-08. In view of the fact that the issue sands concluded in favour of the Respondent-Assessee by the decision of the Supreme Court in Toshoku Ltd. (supra). The Revenue has not shown any change in the law in the subject Assessment Years which would warrant our not following the Apex Court's decision; (h) Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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